'Neurotechnologies and human rights: restating and reaffirming the multi-layered protection of the person' by Christoph Bublitz in (2024) 28(5) The International Journal of Human Rights 782 comments
Advances in neuroscience and neurotechnology and the significant powers they confer over minds and bodies of persons have given rise to grave concerns and caught the attention of lawmakers, ethicists, international organisations, and the human rights community. Following recent reports and statements by the OECD, the International Bioethics Committee of UNESCO (IBC), the Interamerican Juridical Committee of the Organization of American States (IJC), the Council of Europe and the European Parliament which highlight a range of threats to human rights posed by neurotechnologies, the UN Human Rights Council requested its Advisory Committee to prepare a comprehensive study on the topic. The IBC recommends, among other measures, to further develop the interpretation of existing rights and ‘the adaptation of existing human rights instruments and the proclamation of new human rights’, e.g. in a new ‘Universal Declaration on Human Rights and Neurotechnology’. Heeding the recommendation, UNESCO has started to develop the first global standard-setting document on the ethics of neurotechnologies, and the idea about a subsequent binding international treaty is in the air.
Current interest in neurotechnologies arises from their potential to affect central characteristics of persons such as altering their thoughts and feelings, their bodily and mental capacities, their memories or personalities, as well as the technology’s potential to reveal and expose supposedly private aspects of the human mind. The technology develops fast, increasingly implements machine learning methods (Artificial Intelligence, AI), and is driven by start-ups with significant investments by venture capital. More and more products become mature for market release as medical or consumer devices. The attention of the UN, human rights and regulatory agencies is thus timely and warranted. A key topic in the aforementioned reports, crucial for policy and regulatory activities, is the worry that current human rights law might be insufficient to protect persons against many conceivable attacks with the help of neurotechnologies. In this vein, some scholars and neuroscientists have suggested that human rights law has substantive gaps that require closing by the introduction of novel human rights, so called ‘neurorights’, which has become a summary term for novel but vague rights that apply to neurotechnologies. The call for novel rights is grounded in a narrative of deficiency of existing rights. But whether this narrative is persuasive and whether current law indeed leaves substantial gaps that require closing is an open question. Although it is logically prior to the call for novel rights, it has not received thorough examination from neurorights advocates or legal scholars. Providing an analysis of how established human rights relate to neurotechnological challenges is the aim of the following.
Contrary to the narrative of the deficiency of established rights, the analysis will show that reasonably constructed, established rights provide a nuanced multi-layered protection of the person, including her mind, against virtually all conceivable threats by neurotechnologies. More concretely, it will be argued that all worrisome uses of neurotechnologies either interfere with the rights to bodily and mental integrity or the right to privacy. In addition, severe interferences may affect the right to freedom of thought or human dignity. As not all of these rights have been fully examined by human rights scholarship, tentative definitions will be proposed. that render them, especially the nascent right to mental integrity and the long-established yet practically irrelevant freedom of thought, applicable to neurotechnological challenges. Moreover, the paper will offer four readings of human dignity that may inform further interpretations of specific rights and revolve around the idea of protecting individuals as persons and subjects, respecting their subjectivity while rejecting their objectification. In sum, this analysis restates existing rights and reaffirms their applicability to neurotechnologies; it demonstrates the adaptability of established rights to novel circumstances without contravening the text of provisions or the spirit of instruments; on the contrary, it makes explicit the multi-layered protection of the person that is deeply entrenched in core instruments. Accordingly, considerable gaps in the protection of the person at the level of generality of human rights that require closing by novel rights are not evident. Instead, novel technologies invite and require the actualisation and specification of existing guarantees.
Whether these proposed constructions of rights will stand the test of time and be accepted by courts of course remains to be seen. Real case material does not exist yet, and in its absence, only an abstract anticipatory analysis of the scope and limits of rights is possible. It must leave out the many context-specific considerations that may arise in the many conceivable cases in which neurotechnologies may affect persons. The argument in the following lies on a different plane, it argues that defining features of the modus operandi of neurotechnologies makes any worrisome use of them fall under the ambit of established rights. The proposed constructions of rights may guide courts and policymakers, inspire rightholders to invoke them in legal proceedings, and redirect the current discourse about novel rights by debunking its premise of the deficiency of existing rights.
